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| en:thc_recht:wenigillegal [2023/11/03 17:17] – [Little illegal: consumption detected by the police] sos | en:thc_recht:wenigillegal [2024/03/27 08:56] (current) – external edit 127.0.0.1 |
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| ===== Laws ===== | ===== Laws ===== |
| **Regulatory fine**\\ | **Fixed penalty**\\ |
| [[https://www.fedlex.admin.ch/eli/cc/2017/725/en|Regulatory fines Act (OBG), SR 314.1]], Art. 2: Cantons determine the authority, Art. 3: Offence itself determined, Art. 4: Minimum 18 years of age | [[https://www.fedlex.admin.ch/eli/cc/2017/725/en|Fixed Penalties Act (OBG), SR 314.1]], Art. 2: Cantons determine the authority, Art. 3: Offence itself determined, Art. 4: Minimum 18 years of age |
| \\ | \\ |
| [[https://www.fedlex.admin.ch/eli/cc/2019/93/en|Ordinance on regulatory fines (OBV), SR 314.11]], Annex 2/Fine List 2, Chapter VIII, Item 8001: Unauthorized consumption of narcotics of the effect type cannabis (Art. 19a No. 1 NarcA) ⇒ 100 francs. In the PDF (2023) on page 32 | [[https://www.fedlex.admin.ch/eli/cc/2019/93/en|Fixed Penalties Ordinance (OBV), SR 314.11]], Annex 2/Fine List 2, Chapter VIII, Item 8001: Unauthorized consumption of narcotics of the effect type cannabis (Art. 19a No. 1 NarcA) ⇒ 100 francs. In the PDF (2023) on page 32 |
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| **Light case | **Light case |
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| ===== Conditions ===== | ===== Conditions ===== |
| The regulatory fine can only be issued if the police authority has been authorized by the canton to do so, the police have determined the consumption themselves, less than 10 grams of cannabis are involved, no other crimes have been committed and the person is an adult. | The fixed penalty can only be issued if the police authority has been authorized by the canton to do so, the police have determined the consumption themselves, less than 10 grams of cannabis are involved, no other crimes have been committed and the person is an adult. |
| </WRAP> | </WRAP> |
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| ===== Inaccurate media information ===== | ===== Inaccurate media information ===== |
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| Headlines such as "Wer kifft, zahlt 100 Stutz" (Blick), "100 Franken für Cannabiskonsum" (NZZ), "Busse für Kiffer soll 100 Franken betragen" (Tagi) suggested at the introduction in 2013 that generally only a regulatory fine is to be feared if someone smokes pot. The limit of 10 grams was frequently mentioned, but rarely that this amount is exempt from punishment. | Headlines such as "Wer kifft, zahlt 100 Stutz" (Blick), "100 Franken für Cannabiskonsum" (NZZ), "Busse für Kiffer soll 100 Franken betragen" (Tagi) suggested at the introduction in 2013 that generally only a fixed penalty is to be feared if someone smokes pot. The limit of 10 grams was frequently mentioned, but rarely that this amount is exempt from punishment. |
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| That's when it didn't really become clear what the issue was. It's not about smoking pot in general, that is and remains a contravention, which has to be dealt with in due process (police questioning, protocol, report; then another body issues a fine with fees, in case of repetition this becomes higher, see [[en:thc_recht/normalillegal|here]]). | That's when it didn't really become clear what the issue was. It's not about smoking pot in general, that is and remains a contravention, which has to be dealt with in due process (police questioning, protocol, report; then another body issues a fine with fees, in case of repetition this becomes higher, see [[en:thc_recht/normalillegal|here]]). |
| ===== Only for consumption detected by the police ===== | ===== Only for consumption detected by the police ===== |
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| The provisions on regulatory fines only apply to consumption determined by the police themselves. Specifically, the smoking of a joint in public, possibly on a visible balcony or in the garden. If the police have determined this consumption themselves and do not find more than 10 grams during the search of the smokers (according to the law, these are not punishable, [[en:thc_recht/quasilegal|quasi legal]]), then they can punish this consumption themselves directly with a regulatory fine (OB) of 100 francs. | The provisions on fixed penalties only apply to consumption determined by the police themselves. Specifically, the smoking of a joint in public, possibly on a visible balcony or in the garden. If the police have determined this consumption themselves and do not find more than 10 grams during the search of the smokers (according to the law, these are not punishable, [[en:thc_recht/quasilegal|quasi legal]]), then they can punish this consumption themselves directly with a fixed penalty (OB) of 100 francs. |
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| ===== Limited applicability ===== | ===== Limited applicability ===== |
| However, this only applies to adults (juveniles must still be reported "normally") and as long as no other illegal acts have been committed. | However, this only applies to adults (juveniles must still be reported "normally") and as long as no other illegal acts have been committed. |
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| Thus, the regulatory fines are only relevant for a small part of the possible illegal acts around THC. But if someone falls into this category, then a regulatory fine à 100 francs is still an impertinence, but clearly better than a report with a fine and fees of 200 to 1'000 francs. | Thus, the fixed penalties are only relevant for a small part of the possible illegal acts around THC. But if someone falls into this category, then a fixed penalty à 100 francs is still an impertinence, but clearly better than a report with a fine and fees of 200 to 1'000 francs. |
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| ===== Cantonal differences ===== | ===== Cantonal differences ===== |
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| The canton of Bern did not take advantage of this option to simplify the prosecution of consumers and preferred to continue to prosecute (only 196 regulatory fines in 2017), while the canton of Zurich made active use of this tool (3,053 regulatory fine in the same year). These are stark differences in implementation. Incidentally, a total of 18,146 cannabis regulatory fines were issued throughout Switzerland in 2017 (both for detected consumption and for possession of a minor quantity without consumption). | The canton of Bern did not take advantage of this option to simplify the prosecution of consumers and preferred to continue to prosecute (only 196 fixed penalties in 2017), while the canton of Zurich made active use of this tool (3,053 fixed penalty in the same year). These are stark differences in implementation. Incidentally, a total of 18,146 cannabis fixed penalties were issued throughout Switzerland in 2017 (both for detected consumption and for possession of a minor quantity without consumption). |
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| ===== Collapse of the regulatory fines ===== | ===== Collapse of the fixed penalties ===== |
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| After the Federal Court confirmed the impunity of [[en:thc_recht/quasilegal|possession of a minor amount]], police forces could no longer issue OB for it. Therefore, the number of OB has decreased massively from 2018 (see [[en:thc_recht/statistik|statistics]]). 2016 was the peak with 19'766 issued OB, in 2020 it was only 4'013. So tens of thousands were wrongly fined before! | After the Federal Court confirmed the impunity of [[en:thc_recht/quasilegal|possession of a minor amount]], police forces could no longer issue OB for it. Therefore, the number of OB has decreased massively from 2018 (see [[en:thc_recht/statistik|statistics]]). 2016 was the peak with 19'766 issued OB, in 2020 it was only 4'013. So tens of thousands were wrongly fined before! |
| The police can still decide that in a specific case there is more to it than just the joint and the piece of hash and that further clarifications "must" be made. In this way, such cases can also lead to ordinary proceedings. | The police can still decide that in a specific case there is more to it than just the joint and the piece of hash and that further clarifications "must" be made. In this way, such cases can also lead to ordinary proceedings. |
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| Because, as it says in a presentation of the Zurich city police: //"The regulatory fine procedure is excluded (...) if at the same time other violations against the NarcA (...) are present, which cannot be punished in the regulatory fine procedure (e.g. continuous consumption)."// | Because, as it says in a presentation of the Zurich city police: //"The fixed penalty procedure is excluded (...) if at the same time other violations against the NarcA (...) are present, which cannot be punished in the fixed penalty procedure (e.g. continuous consumption)."// |
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| One thing is certain: anyone who honestly tells the police about past consumption can and will very well be reported. | One thing is certain: anyone who honestly tells the police about past consumption can and will very well be reported. |
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| ===== Regulatory fine as an optional provision ===== | ===== Fixed penalty as an optional provision ===== |
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| We cannot recognize a legal claim to punishment with a regulatory fine. However, the opposite is possible; everyone is allowed to say: //"No, I don't want a regulatory fine from the police, but to be reported in the normal procedure"//. In this way, those affected can also drag the whole thing on through the instances. However, this rarely brings anything, because the costs increase enormously. | We cannot recognize a legal claim to punishment with a fixed penalty. However, the opposite is possible; everyone is allowed to say: //"No, I don't want a fixed penalty from the police, but to be reported in the normal procedure"//. In this way, those affected can also drag the whole thing on through the instances. However, this rarely brings anything, because the costs increase enormously. |
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| ===== The cantons must implement them ===== | ===== The cantons must implement them ===== |
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| Although the provisions on regulatory fines are laid down in the nationwide law and ordinance on regulatory fines, the cantons must implement prosecution in concrete terms, which means that cantonal provisions are also required. Only these cantonal decisions authorize certain police bodies to issue regulatory fines. For example, the Valais municipal police did not have this authority for the first few years and thus issued notices as before, while the Valais cantonal police already issued regulatory fine. | Although the provisions on fixed penalties are laid down in the nationwide law and Fixed Penalties Ordinance, the cantons must implement prosecution in concrete terms, which means that cantonal provisions are also required. Only these cantonal decisions authorize certain police bodies to issue fixed penalties. For example, the Valais municipal police did not have this authority for the first few years and thus issued notices as before, while the Valais cantonal police already issued fixed penalty. |
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| In the canton of Bern, only uniformed police officers may issue regulatory fines, while in many other cantons all members of an authorized authority may do so. | In the canton of Bern, only uniformed police officers may issue fixed penalties, while in many other cantons all members of an authorized authority may do so. |
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| ===== And the "easy case"? ===== | ===== And the "easy case"? ===== |
| This would be exactly the right approach: for reasons of the rule of law and on the basis of constitutional personal liberties, the authorities should apply this provision of the NarcA widely. But this has not (yet?) reached the police, the municipal judges' offices, the governors' offices and the public prosecutors' offices! | This would be exactly the right approach: for reasons of the rule of law and on the basis of constitutional personal liberties, the authorities should apply this provision of the NarcA widely. But this has not (yet?) reached the police, the municipal judges' offices, the governors' offices and the public prosecutors' offices! |
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| ====== Development of cannabis regulatory fines ====== | ====== Development of cannabis fixed penalties ====== |
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| * [[en:thc_recht/verschiebungordnungsbussenvorschriften|Postponement of the regulatory fine regulations (NarcA ⇒ OBG/OBV) as of 1.1.2020]] | * [[en:thc_recht/verschiebungordnungsbussenvorschriften|Postponement of the fixed penalty regulations (NarcA ⇒ OBG/OBV) as of 1.1.2020]] |
| * [[en:thc_recht/li840405|Summer 2019: The inconsistent application of regulatory fines and the provisions in the new Regulatory Fines Act.]] | * [[en:thc_recht/li840405|Summer 2019: The inconsistent application of fixed penalties and the provisions in the new Fixed Penalties Act.]] |
| * [[en:thc_recht/entwicklung_ordnungsbussen|Spring 2015: The regulatory fines are reality]] | * [[en:thc_recht/entwicklung_ordnungsbussen|Spring 2015: The fixed penalties are reality]] |
| * The regulatory fines were introduced on 1.10.2013. As long as a canton had not created a legal basis for the cannabis regulatory fines, they could not be applied in this canton. In summer 2013, only the cantons of [[http://www.bo-vs.ch/de/medias/?idIndex=7&idContent=15655|Valais]] and [[http://www.schaffhausen.ch/news/2A4B4B2C-83A2-4FF7-B2242758670C6781.htm|Schaffhausen]] had announced this implementation. | * The fixed penalties were introduced on 1.10.2013. As long as a canton had not created a legal basis for the cannabis fixed penalties, they could not be applied in this canton. In summer 2013, only the cantons of [[http://www.bo-vs.ch/de/medias/?idIndex=7&idContent=15655|Valais]] and [[http://www.schaffhausen.ch/news/2A4B4B2C-83A2-4FF7-B2242758670C6781.htm|Schaffhausen]] had announced this implementation. |
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| ====== Examples of regulatory fines ====== | ====== Examples of fixed penalties ====== |
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| ===== From Ticino 2021 ===== | ===== From Ticino 2021 ===== |
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| This is the first time the new number for cannabis regulatory fines is listed: 8001. | This is the first time the new number for cannabis fixed penalties is listed: 8001. |
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| | {{:thc_recht:ordnungsbusseti2021.png}} | | | {{:thc_recht:ordnungsbusseti2021.png}} | |
| | {{:thc_recht:ordnungsbusseti.jpg?400x}} | | | {{:thc_recht:ordnungsbusseti.jpg?400x}} | |
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| ====== Regulatory fines in the media (as of Oct. 2013) ====== | ====== Fixed penalties in the media (as of Oct. 2013) ====== |
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| * [[http://www.20min.ch/schweiz/news/story/Polizei-buesst-Raucher-von-CBD-Zigarette-22080958|Police fine CBD cigarette smoker]] (20min.ch, 23.8.17) | * [[http://www.20min.ch/schweiz/news/story/Polizei-buesst-Raucher-von-CBD-Zigarette-22080958|Police fine CBD cigarette smoker]] (20min.ch, 23.8.17) |
| * [[https://tsri.ch/zh/cannabisbussen/|Almost 10x more cannabis fines in the city of Zurich than in the canton of Bern - Why?]] (tsri.ch, 3.7.17) | * [[https://tsri.ch/zh/cannabisbussen/|Almost 10x more cannabis fines in the city of Zurich than in the canton of Bern - Why?]] (tsri.ch, 3.7.17) |
| * [[http://www.watson.ch/Schweiz/Drogen/993895850-Geht's-jetzt-den-Kiffern-an-den-Kragen--B%C3%BCrgerliche-Politiker-fordern-h%C3%A4rtere-Strafen|Tougher penalties called for: Are stoners in for it?]] (watson.ch, 22.2.17) | * [[http://www.watson.ch/Schweiz/Drogen/993895850-Geht's-jetzt-den-Kiffern-an-den-Kragen--B%C3%BCrgerliche-Politiker-fordern-h%C3%A4rtere-Strafen|Tougher penalties called for: Are stoners in for it?]] (watson.ch, 22.2.17) |
| * [[http://www.suchtschweiz.ch/aktuell/medienmitteilungen/article/uneinheitliche-umsetzung-des-ordnungsbussenverfahrens-fuer-cannabiskonsum/?tx_ttnews%5BbackPid%5D=2&cHash=40f0aad7d90e2ffdff6db03ff368337b|Inconsistent implementation of the regulatory fine procedure for cannabis use]] (Sucht Schweiz, 2.2.17) | * [[http://www.suchtschweiz.ch/aktuell/medienmitteilungen/article/uneinheitliche-umsetzung-des-ordnungsbussenverfahrens-fuer-cannabiskonsum/?tx_ttnews%5BbackPid%5D=2&cHash=40f0aad7d90e2ffdff6db03ff368337b|Inconsistent implementation of the fixed penalty procedure for cannabis use]] (Sucht Schweiz, 2.2.17) |
| * [[http://www.blick.ch/news/schweiz/legales-cannabis-cpure-wer-erwischt-wird-erhaelt-trotzdem-eine-busse-id5388541.html|Those who get caught still get a regulatory fine]] (Blick & Blick am Abend, 17.8.16, Legal (CBD)weed is still punished with a fine ) | * [[http://www.blick.ch/news/schweiz/legales-cannabis-cpure-wer-erwischt-wird-erhaelt-trotzdem-eine-busse-id5388541.html|Those who get caught still get a fixed penalty]] (Blick & Blick am Abend, 17.8.16, Legal (CBD)weed is still punished with a fine ) |
| * [[http://bazonline.ch/basel/stadt/Basel-schon-nahe-an-der-Straffreiheit/story/30699460|Basel already close to impunity]] (Basler Zeitung, 22.10.14, A look back at one year regulatory fines and another variation on dealing with the [[en:thc_recht/quasilegal|minor amount]]) | * [[http://bazonline.ch/basel/stadt/Basel-schon-nahe-an-der-Straffreiheit/story/30699460|Basel already close to impunity]] (Basler Zeitung, 22.10.14, A look back at one year fixed penalties and another variation on dealing with the [[en:thc_recht/quasilegal|minor amount]]) |
| * [[http://www.blickamabend.ch/news/bilanz-des-kiffer-gesetzes-in-zuerich-gibts-deutlich-mehr-bussen-als-in-bern-id2798804.html|Different approach in Zurich and Bern]] (Blick am Abend, 15.4.14) | * [[http://www.blickamabend.ch/news/bilanz-des-kiffer-gesetzes-in-zuerich-gibts-deutlich-mehr-bussen-als-in-bern-id2798804.html|Different approach in Zurich and Bern]] (Blick am Abend, 15.4.14) |
| * [[http://www.basellandschaftlichezeitung.ch/basel/basel-stadt/seit-oktober-wurden-in-basel-erst-17-kiffer-mit-100-franken-gebuesst-127595232|Since October, only 17 stoners have been fined 100 francs in Basel]] (Basellandschaftliche Zeitung, 23.1.14) | * [[http://www.basellandschaftlichezeitung.ch/basel/basel-stadt/seit-oktober-wurden-in-basel-erst-17-kiffer-mit-100-franken-gebuesst-127595232|Since October, only 17 stoners have been fined 100 francs in Basel]] (Basellandschaftliche Zeitung, 23.1.14) |
